In New Jersey, the Fight for Affordable Housing Is Becoming Everybody’s Obligation

In many U.S. cities where much-needed affordable housing developments are met with ire and protest from local residents, pro-housing advocates often have little legal recourse. New Jersey is a state that, according to the National Low Income Housing Coalition, is missing more than 200,000 affordable homes. But to make a dent in this enormous need, late last month New Jersey Governor Phil Murphy signed Bill S50/A4 into law, effectively setting a course for building future affordable housing developments across the state’s 564 municipalities. The law builds upon the state’s Mount Laurel Doctrine—a 1975 constitutional obligation that requires state municipalities to provide their "fair share" of affordable housing—by codifying how cities and townships calculate required affordable housing units and allowing courts to resolve disputes through a new resolution program.

The Mount Laurel Doctrine was created after a series of New Jersey Supreme Court court rulings on cases filed by the NAACP that outlawed exclusionary zoning. The state’s Fair Housing Act of 1985 then produced the Council on Affordable Housing (COAH) to enforce the doctrine. But that was largely ineffective, having "failed for more than 15 years to adopt updated affordable housing quotas and rules for towns to follow, which stalled construction on affordable units for decades," according to a 2022 report from Bergen Record.

The state stripped COAH of its power in 2015, handing affordable housing mandates to the courts; the new law abolishes COAH entirely, and gives the Department of Community Affairs control over these mandates.

Since the Mount Laurel doctrine was enacted 49 years ago, these legal mandates have become polarizing and politicized, according to a recent WHYY report. The New Jersey Fair Share Housing Center (FSHC, a nonprofit organization named responsible by state courts for negotiating affordable housing agreements with communities) has resolved more than 340 cases with state municipalities—cases that are costly to those townships financially and politically, as they end up fighting in court and losing, ultimately being ordered to build regardless.

However, Gothamist reported last month on one such fight in Millburn Township—a wealthy town in Essex County that has "defied multiple court orders to move forward with development of a 75-unit, 100-percent affordable housing complex in the heart of their upscale downtown." Reporter Mike Hayes notes that advocates for the project want a judge to personally fine township officials and strip them of their development-control power. Under the new law, these negotiations will take place with a court-assigned nonprofit, "thus reducing judicial involvement and legal costs," reads the FSHC announcement.

Yet opposition to the bill remains strong: Republican state Senator Declan O’Scanlon told WHYY that "it mandates levels of affordable housing that many, many communities, particularly our suburban ones, can’t sustain," calling the law "a dramatic overreach." Robert Conley, mayor of Madison, New Jersey, penned an NJ.com op-ed, saying, "No professional would ever suggest that it makes sense to create plans in areas as small as two square miles (or even smaller), but that is exactly what we have to do in the home rule capital of the world." (Ironically, a NJ.com online headline from this week reads, "These 8 NJ towns rank in top 150 for most expensive home prices in US.")

Regardless, the new law—which also encourages senior housing and other affordable housing developments to be built close to transit and grocery access—will take effect next year, when the state begins issuing updated obligations for affordable housing. It could also serve as an example for other states of how policymakers can take matters into their own hands, using legislative tools to create mandates—and opportunities—to actually build new homes.

Aerial view of houses in Elizabeth, New Jersey. Photo by James Leynse/Corbis via Getty Images.

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